Google today revealed that it has evidence that Viacom purposefully uploaded many of the copyrighted clips it is suing YouTube over, such as clips from Comedy Central shows like South Park. If the stunning allegation holds true, it could spell doom for Viacom's $1B USD suit against the site. (Source: YouTube)

Claims could have a big impact on $1B USD suit against YouTube

Google
dropped a bombshell today. It claims that Viacom, who is currently
suing its video sharing site YouTube, knowingly and purposefully
promoted the uploading of Viacom's copyrighted works to the site,
trying to make them look like pirated copies.

Viacom's suit
against YouTube has been smoldering in
the U.S. District Court for the Southern District of New York since
March 2007. After Viacom failed in multiple bids to acquire
the video sharing site, it filed suit seeking $1B USD in damages from
YouTube's current owner, internet mogul Google. Viacom accuses
YouTube of allowing 160,000 infringed video clips to be posted.

As
the opening
briefs of the case were just unsealed and released to the
public today, Google has posted a blog blasting Viacom and saying
that the lawsuit threatens the future of the
internet.

With
some minor exceptions, all videos are automatically copyrighted from
the moment they are created, regardless of who creates them. This
means all videos on YouTube are copyrighted -- from Charlie Bit My
Finger, to the video of your cat playing the piano and the video you
took at your cousin’s wedding. The issue in this lawsuit is not
whether a video is copyrighted, but whether it's authorized to be on
the site. The DMCA (and common sense) recognizes that content owners,
not service providers like YouTube, are in the best position to know
whether a specific video is authorized to be on an Internet hosting
service.

Google
is referring to the fact that current copyright interpretation is
that you in effect have a copyright as soon as you create
content.

Google also reveals that it is confident it has
evidence to prove that Viacom was secretly uploading videos to
YouTube to promote programming on its TV networks like Comedy Central
and BET. Writes Google:

For
years, Viacom continuously and secretly uploaded its content to
YouTube, even while publicly complaining about its presence there. It
hired no fewer than 18 different marketing agencies to upload its
content to the site. It deliberately "roughed up" the
videos to make them look stolen or leaked. It opened YouTube accounts
using phony email addresses. It even sent employees to Kinko's to
upload clips from computers that couldn't be traced to Viacom. And in
an effort to promote its own shows, as a matter of company policy
Viacom routinely left up clips from shows that had been uploaded to
YouTube by ordinary users. Executives as high up as the president of
Comedy Central and the head of MTV Networks felt "very strongly"
that clips from shows like The Daily Show and The Colbert Report
should remain on YouTube.

If
Google can indeed prove this, it could be Google's own "smoking
gun". Viacom's so-called "smoking gun" piece of
evidence in the case came in October of last year when it unearthed
YouTube emails in which the site co-founder Chad Hurley chastises
co-founder Jawed Karim for uploading copyrighted video. He
writes:

jawed
(Karim), please stop putting stolen videos on the site. We're going
to have a tough time defending the fact that we're not liable for the
copyrighted material on the site because we didn't put it up when one
of the co-founders is blatantly stealing content from other sites and
trying to get everyone to see it.

That
email was extremely significant as the Digital Millennium Copyright
Act only extends "Safe Harbor" provisions to internet
content sites if they don't know infringement is occurring on their
site and remove infringed works when they are brought to their
intention. The Digital
Millennium Copyright Act (DMCA) 17 U.S.C. §512(c)(1)(A) states
that a service provider cannot be held liable for infringing material
uploaded to their site as long as:

The
services do not have actual knowledge that the
material, or an activity using the material on the system or
network, is infringing;

In
the absence of such actual knowledge, is not aware of
facts or circumstances from which infringing activity is apparent;
or

Upon
obtaining such knowledge or awareness, acts
expeditiously to remove, or disable access to, the material.

The
YouTube emails certainly damaged Google's case. However, if it
can prove its big claims about Viacom, it could well have a victory
on its hands. The site does seem to have current precedent in
its favor -- in September 2009, much smaller video site Veoh won in a
court case brought by Universal Music Group. Veoh's victory
came thanks to applying the "Safe Harbor" defense.

The
case is critical as the amount Viacom is seeking is almost as much as
the purchase price of the site itself. Google paid $1.65B USD
to acquire YouTube in October 2006, about a year and a half after the
first video was uploaded to the site on April 23, 2005. The
site still struggles
with profitability -- its daily bandwidth expenses alone are
over $1M USD, and it's trying to transition to high-definition
offerings.

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